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Privacy Ruling by India's Top Court Could Have Far-reaching Impact

August 26, 2017 4:01 AM

Anjana Pasricha

FILE - A villager goes through the process of a fingerprint scanner during Unique Identification (UID) database system in the Pathancheru village, in Medak district of the southern Indian state of Andhra Pradesh April 27, 2010.

Jubilant lawyers and commentators said the unanimous nine-bench ruling would have far reaching implications on civil rights, ranging from the way personal data is handled to gay rights in the world's largest democracy.

The ruling is seen as a setback to what some feared could be the emergence of a "surveillance state" after the government massively scaled up the use of the world's largest biometric identity citizen database and argued that privacy was not a standalone fundamental right.

Under India's ambitious "Aadhar" scheme, some 1.13 billion citizens have been issued 12 digit identity numbers after their fingerprints and iris scans were collected. It is not the only country to take biometric data – some 60 other countries do so as well.

A villager goes through the process of a fingerprint scanner for the Unique Identification (UID) database system at an enrollment center at Merta district in the desert Indian state of Rajasthan, Feb. 22, 2013.

But what began as a voluntary program meant to cut out middle men and eliminate fraud in welfare schemes for poor people became mired in controversy after a new law passed last year made the digital card mandatory for a range of services such as opening bank accounts, filing tax returns, securing loans and getting access to state benefits.

Petitioners hope the judgment will limit the government's power to use the widely expanding data base. They had argued the pervasive use of the "Aadhar" card could become a powerful tool in the hands of the state, result in profiling -- for example of a person's spending habits, and open the door to more state intrusion.

Although the Supreme Court is hearing a separate case on restricting the use of "Aadhar," the privacy judgment will have an important bearing on that verdict.

After the judgment was read out, the government reiterated that the project has been a boon for millions of poor people and said concerns that the scheme violates privacy are overblown.

"It works on a principle of minimum information, maximum use. The poor are happy, they are feeling empowered," said Law Minister, Ravi Shankar Prasad.

He said India had effectively used modern technology to ensure that subsidies reach people who had no way to claim benefits because they did not have any identification such as bank accounts and driving licenses.

Pointing out that it has curbed corruption, he said, "In the last nearly three years we have saved close nearly 57,000 crores ($9 billion) which used to be pocketed by middlemen or fictitious persons."

Meanwhile, for the country's gay community, it was not the controversy over the biometric card, but the observation that privacy must protect family, marriage, procreation and sexual orientation that ignited fresh hope that a British era law that considers gay sex a criminal offense might finally be overturned.

"Clearly I was over the moon," said activist Anjali Gopalan, who has led the battle to scrap the archaic law. She expressed optimism that the ruling has set the stage for the Supreme Court to overturn that act. "It will have a positive impact," said Gopalan.

Significantly, upholding privacy as a fundamental right will also have a bearing on some contentious concerns that have emerged under Prime Minister Narendra Modi's Hindu nationalist government. For example, several state governments have imposed bans on the consumption and sale of beef because Hindus consider the cow a holy animal. That has angered liberal sections of society who say the state must not dictate personal choices.

Opponents of such moves took heart from the judgment which said that nobody would like to be told what to eat or how to dress. Lawyers said the observations could result in challenges to the beef ban.

In the months and years to come, the ruling will also shape the way companies in India collate and handle personal data after judges flagged the need for personal space in an age when companies like Google want to glean personal data from the Internet to sell online advertising services and items tailored to individual users.

The wide sweep of the judgment led many to echo what the Times of India said – the ruling had propelled India into the ranks of progressive societies.